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ESA refusal - tactics? 

 

HFCAB
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Generalist Team, Hammersmith & Fulham CAB

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Had a client who came in with a WCA refusal. When I looked at her paperwork, I realised that she’d only stopped claiming JSA on the day before. When I called ESA, they said it was because she had a failed WCA assessment on May 2017 and didn’t think her health has sufficiently changed, and therefore refused the claim. However, the wording is definitely not ‘you cannot claim because your health is not worse’, it is ‘we think although you have an illness, you are able to do some kinds of work’ where they used the information from the ESA50 and assessment in 2017.

We are within 13 months of original decision in 2017, what do people think is the best tactic? Client can reclaim JSA (over 3 kids in a UC area), but has long term health issues. I suspect they may fight the reinstatement of ESA before tribunal due to the previous failed claim. Challenge both?

What do people think? Grateful for any thoughts.

Rebecca

     
Dan Manville
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Mental health, Wolverhampton CC Welfare Rights

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I pay scant attention to the wording of those letters; often they are complete rubbish and wholly unrelated to the true situation at hand.

I’m reading this as WCA fail in 2017, JSa claimed then a few months later new claim for ESA which was refused as the “significant deterioration or new condition” test in reg 30 isn;t met. If so, if a late appeal against the original ESA decision is available I’d have a crack at that as well as considering whether there has been deterioration or a new condition such that appealing the new claim decision is viable.

     
Damian
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If they decided that her condition hadn’t changed enough for reg 30 (4) to apply that does not mean they should decide she is not entitled, they just can’t make a decision until they have done a WCA. They may have decided that she does not have LCW based on the same evidence (ESA50, ESA85 etc) from the WCA a year ago. Whoever you get to speak to on the phone probably wont have enough of a grasp to know what they’ve done. I would think the best bet is mandatory reconsideration / late appeal for the decision a year ago and mandy for the latest decision. Particularly since the decisions were probably based on the same evidence it makes sense to challenge both.

     
Elliot Kent
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Damian - 11 May 2018 10:09 AM

They may have decided that she does not have LCW based on the same evidence (ESA50, ESA85 etc) from the WCA a year ago.

I think that’s probably it.

DWP have three options on receipt of an ESA repeat claim:
(1) Pay on the new claim pending assessment on the basis of new condition/deterioration.
(2) Arrange a traditional assessment (ESA50, medical etc) but don’t pay anything pending assessment as there does not appear to have been a new condition or deterioration.
(3) Curtail the whole process and make an assessment decision on the existing evidence.

(see also DMG 42370 onwards)

By the sounds of the first post, you’re looking at (3).